Citation Numbers: 108 Ala. 89
Judges: McClellan
Filed Date: 11/15/1895
Status: Precedential
Modified Date: 7/19/2022
The Eureka Brick & Lumber Co.
The said contract, and the right of defendants to the money due or to become due under it, was transferred as security for a debt which it is alleged they owed the bank, and not in payment of such debt; and in the writing of transfer there was a stipulation, in effect, that the defendants should complete the erection of the buildings according to the terms of the contract as modified in some particulars before this transaction. At the time of this transfer the defendants were largely indebted to others than the bank, and among the rest, it is alleged, to A. H. Keller. Their assets consisted of the money due and to become due under this contract, amounting to about seven thousand, one hundred dollars; building material and plant of the value of about three thousand, two hundred dollars ; and bills receivable of the nominal value of about two thousand, six hundred dollars, but of
There was evidence in the testimony of Gillam tending to show that a mutual mistake had been made by the defendants and Keller in stating and settling the account between them at the time of the sale to him and the transfer to the bank, in this, that Keller was not charged with what he owed the defendants for building certain houses and cisterns for him and for the material used therein; and that these items more than balanced
There was also evidence tending to show that Keller was no'-, authorized to act and did not act for the bank in the matter of effecting the transfer of the contract to it, but that t> the contrary the bank was represented in that reg ird by its cashier. The evidence for claimant also tended to show that no mistake was made in the settlement between Keller and the defendants, and that they owed him the amount agreed upon on that settlement. And Keller denied that he had agreed-to refund to the. defendants whatever should-remain from the proceeds of the contract and property after the satisfaction of the debts of the bank and himself, but said that as one of the'defendants was his son he “expected to turn what balance should remain over to them after completion of contract and payment of debts, as all lie wanted was to lo-e nothing.”
These divergent tendencies of the evidence presented issues of fact which, so far as they were material, were for the determination of the jury. They had' the right to believe as true the facts which the phases of evidence most favorable to the plaintiff went to establish ; and they might therefore have concluded — there was evidence upon which they might have based their conclusion — that the transfer of the contract to the bank and the sale of the property to Keller were' but parts of one and the same transaction conducted and consummated on one side by Keller for himself and the bank; that to the knowledge of Keller and of the bank the defendants were in an insolvent and failing condiiion; that it was the purpose of the defendants to shield their tangible property from process at the suit of other creditors, by vesting it in Keller, so that they could go on in his name in the use and consumption of property, with respect to which other creditors .were thus hindered and delayed and defeated, to the- completion. of the contract '.for the
Charge 12 refused to the claimant is misleading, if not otherwise faulty. It tended to obscure A. H. Keller’s representation of the bank in the transaction and the latter’s responsibility for his acts and intentions in its behalf. The jury might have believed that the bank ' itself, in ásense, took the contract without covinous intent, yet if they also believed Keller acted for and by authority of the bank, knew of such intent on the part of the transferrors, and participated in it by accepting or stipulating for the transfer as part and parcel of the sale of the other property to himself, that he might keep other creditors off of it and use it in completing the contract for the benefit of the hank, they should have found for plaintiff. This charge had a tendency to deny them this right in the contingency referred to, The charge is also abstract in respect of its hypothesis that the bank was to complete the work. By the terms of the transfer, the defendants undertook, the full, performance of the contract.
The several charges requested by the claimant to the effect-, or proceeding upon the idea, that because the work stipulated for in the building contract had not been completed at the time of the transfer thereof, the proceeds could not be reached by garnishment, do not appear to be. insisted upon in the argument of appelh ant’s counsel’ Moreover, in. view of the evidence that though the work, had’not been: completed, the defendants were at that time entitled, by the. terms of.the cop-tract, to certain partial payments-, it is clear that the sum of such payments'could .be reached-by ■garnishment; it-was money then due for which the defendants could
Gillam testified that a short time before the transfer, Abbott the cashier of the bank told him that they, the Tuscumbia Contracting Company, owed the bank about $3,500. There is no evidence that this debt was increased in the short interval between the time of this alleged conversation and the transfer, to over $7,000. This was therefore some evidence that the defendants did not owe the bank this larger sum at the time of the transfer. Charge 9 was therefore well refused.
The fact that Gillam continued in the performance Of the contract after its transfer, the work being done under cover of Keller’s name, had some tendency to support the general theory, which finds lodgment in the evidence, that all that took place between defendants and A. H. Keller individually and as representing the bank was characterized by a purpose on both sides to keep the plant and building material out of the clutches of other creditors who were then pressing for payment, until this property could be applied to the completion of the work for the benefit of the bank to the extent of its debt, and as to the rest for the benefit of the defendants. The trial court very properly, therefore, refused to instruct the jury (charge 14) that this fact “could have no effect upon the case.”
If the jury found, as they were authorized by the other evidence in the case to do, that the transfer of the contract to the bank and the sale of the building plant and material to A. H. Keller were one and the same transaction, that Keller acted for and by authority of the bank in the premises, and that the sale and the transfer were interdependent in that the property sold was to be devoted to the completion of the contract in A. H. Keller’s name, they were entitled to look at all the facts and circumstances of alleged indebtedness of the defend: ants to A. H. Keller, whether they were primarily indebted to him at all, and to what extent if at all, in ascertaining and. declaring the intent — whether covinous and fraudulent or not&wkey;with which the sale and .transfer wore .-.made .to Keller'and the bank, respectively; and hence it-is that-all''of-the evidence to, which objection.
It is not argued, and cannot bo maintained, that any of the charges given at the instance of plaintiff are faulty otherwise than for being abstract. It may be that some of them are open to this objection, but, unless we can see that the jury was probably misled by them, that is not ground for reversal. L. & N. R. R. Co. v. Orr, 94 Ala. 602 ; Ala. Gt. So. R. R. Co. v. Frazier, 93 Ala. 45.
Guided by the principles laid down in the case of Cobb v. Malone & Collins, 92 Ala. 630, we are unable to affirm that the trial court erred’in overruling the claimant’s motion for a new trial. The judgment of the circuit court must be affirmed,